MUNDLAPATI JAGANNADHA RAO Vs. RACHAPUDI BASAVAYYA

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge of Bezwada under the following circumstances. The petitioner decree-holder obtained a mortgage decree. In execution he brought to sale some only of the mortgaged items and bought them in Court auction, and as the price fetched was enough to satisfy the decree, satisfaction was recorded. After the sales were confirmed, when the petitioner went to take possession of the properties he had bought, he was resisted by a stranger. His petition to remove obstruction and get delivery was dismissed. Thereupon the decree-holder filed the petition appealed from to set aside the satisfaction that had been entered up, as the judgment-debtor had no saleable interest in some of the properties sold and the petitioner had consequently failed to get possession. The Subordinate Judge relying on certain authorities held that the petition lay and allowed further execution to the extent of the sale price of the item in respect of which the decree-holder's petition to remove obstruction was disallowed. Hence the appeal.

(2.) This case has been elaborately argued and it may no doubt be dealt with in more than one aspect, but fortunately there is one recent authority which, if accepted, in my opinion, answers the question propounded. It will be noticed in the present case that the remedies ordinarily open to a person in the position of the decree-holder here are contained in Order 21, Rules 91, 92 and 93, particularly 91, which enacts that the purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold. The period of limitation for this under Art. 166 of the Limitation Act is 30 days. It is not disputed that no action has been taken under the rule. The question is whether to have the sale set aside is the only remedy of the decree- holder and he being now too late his petition must be dismissed. It is said that there is here no petition to set the sale aside and therefore there can be no application of Art. 166. It is further said that the decree-holder cannot be said to be satisfied till possession is delivered, that it has not been decided as to when a decree-holder who is also an auction purchaser is satisfied, and further that either Art. 181 or 182 of the Limitation Act applies because the right must accrue from the time when the application to remove obstruction was made in 1924. The present petition dated 3 September 1924 asks that the Court shall issue sale notices in respect of certain items which remained unsold and for an order permitting the decree-holder to bid. There is no mention of the previous sale and it is true there is no prayer to set aside the previous sale in respect of the items possession of which was obstructed. If, however, the procedure under Rule 91 is the only course open to the petitioner, it is obvious that the present method of attempting to circumvent this provision must be discouraged. Muthukumarasamia Pillai V/s. Muthusami Thevan (1926) 52 MLJ 148 is a decision of Wallace and Madhavan Nair, JJ., and it is a case, to my mind, exactly on all fours with the present. In the present appeal it was attempted to be argued that the Court sale of the property Which turns out not to belong to the judgment-debtor is void ab initio and therefore does not need setting aside. Wallace and Madhavan Nair, jj., held that such a sale is not void but only voidable. They say: If the contention of the appellant were accepted, it would mean that a Court in selling property in execution gives a guarantee that the property sold is the property of the judgment-debtor which is opposed to one of the fundamental principles of Court sale.

(3.) In Radha Kishun Lal V/s. Kashi Lal (1923) ILR 2 Pat. 829 referred to and disapproved by the learned Judges the Court held that where a third person and a stranger has brought a suit to set aside the execution sale and obtained a decree, no formal setting aside of the sale as between the decree-holder and the judgment-debtor is necessary and further that Order 21 is not exhaustive of the procedure for setting aside an execution sale. The learned Judges refused to accept the Patna proposition that a decree-holder who purchases at a Court sale is in a more favourable position than a stranger auction purchaser and continue: In fact, it is one of the decree-holder's duties to see that the property sold was the property of his judgment-debtor, and if he makes a mistake he must take the consequence.